Gregory McPherson v. O. Perez

Case: 12-40973 Document: 00512217381 Page: 1 Date Filed: 04/23/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 23, 2013
No. 12-40973
Summary Calendar Lyle W. Cayce
Clerk
GREGORY PAUL MCPHERSON,
Plaintiff-Appellant,
versus
WARDEN O. PEREZ; CAPTAIN A. GARCIA; J. GUERRA, Grievance Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. 1:12-CV-141
Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Gregory McPherson, Texas prisoner # 1437871, moves for leave to proceed
in forma pauperis (“IFP”) in his appeal of the dismissal of his 42 U.S.C. § 1983
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 12-40973 Document: 00512217381 Page: 2 Date Filed: 04/23/2013
No. 12-40973
civil rights lawsuit. By moving for IFP status, McPherson is challenging the dis-
trict court’s certification that the appeal is not taken in good faith. See Baugh
v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); FED. R. APP. P. 24(a).
McPherson’s brief contends only in general terms that his claims are not
frivolous. He does not address, however, the certification that his appeal was not
taken in good faith or any of the district court’s reasons, see Baugh, 117 F.3d at
202, so his challenge to the certification is deemed abandoned, see Brinkmann
v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Thus,
McPherson has not shown that his appeal involves “legal points arguable on
their merits (and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220
(5th Cir. 1983) (internal quotation and citation omitted).
The motion to proceed IFP on appeal is DENIED, and the appeal is
DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.
The dismissal by the district court and the dismissal of the appeal both count as
strikes pursuant to 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 385-87 (5th Cir. 1996). Thus, McPherson is cautioned that if he accumu-
lates three strikes under § 1915(g), he will not be able to proceed IFP in any civil
action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).
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